You have asked about the legality of three games conducted by
newspapers in the pages of their publications and one to be
broadcast as a television game show for viewer participation.
Each of them (variously called "Wingo," "Bingo," or "Banko") uses
a format similar to that of a bingo game. The games are designed
to promote newspaper circulation or to increase patron-traffic on
behalf of local businesses. Free game materials are made
available to potential players and it is not necessary to
purchase anything to win.

The Texas Constitution requires the legislature to enact laws
prohibiting "lotteries" and "gift enterprises." Tex.Const. art.
III, s 47. A 1980 amendment to that provision allows the
legislature to authorize bingo games under certain circumstances:

Generally, the Bingo Enabling Act, article 179d, V.T.C.S.,
seeks to implement a constitutionally-contemplated regulatory
scheme for legalized bingo games. A bingo game is defined by
section 2(2) of article 179d to mean

a specific game of chance, commonly known as bingo or lotto,
in which prizes are awarded on the basis of designated numbers or
symbols on a card conforming to numbers or symbols selected at
random.

The definition of a bingo game is given more detail by section 39
of the Bingo Enabling Act--the part of the statute that makes the
conduct, promotion, or administration of an unlawful bingo game a
crime. It reads:

(a) For the purposes of this section, 'bingo' or 'game' means
a specific game of chance, commonly known as bingo or lotto, in
which prizes are awarded on the basis of designated numbers or
symbols on a card conforming to numbers or symbols selected at
random, whether or not a person who participates as a player
furnishes something of value for the opportunity to participate.

(b) Any person conducting, promoting, or administering a game
commits a felony of the third degree unless the person is
conducting, promoting, or administering a game:

(1) in accordance with a valid license issued under this Act;

(2) within the confines of a home for purposes of amusement
or recreation when:

(A) no player or other person furnishes anything of more than
nominal value for the opportunity to participate;

(B) participation in the game does not exceed 15 players;
and

(C) the prizes awarded or to be awarded are nominal; or

(3) on behalf of an organization of persons 60 years of age
or over, a senior citizens' association, or the patients in a
hospital or nursing home or residents of a retirement home solely
for the purpose of amusement and recreation of its members,
residents, or patients, when:

(A) no player or other person furnishes anything of more than
nominal value for the opportunity to participate; and

(B) the prizes awarded or to be awarded are nominal.

(c) This section applies to all political subdivisions
regardless of local option status.

(d) A game exempted by Subdivision (2) or (3) of Subsection
(b) of this section does not need to be licensed. (Emphasis
added).

V.T.C.S. art. 179d, s 39. Your office has determined that the
games in question constitute "bingo" within the meaning of
section 39.

In light of the concluding words of subsection (a) of section
39, it is unnecessary to review cases decided under other laws
that deal with the use of advertising or merchandising promotions
having a "bingo," "gift enterprise," or "lottery" format. See
Brice v. State, 242 S.W.2d 433 (Tex.Crim.App.1951); see also
State v. Socony Mobile Oil Company, 386 S.W.2d 169 (Tex.Civ.App.--San Antonio 1964, writ ref'd n.r.e.); Hoffman v. State, 219
S.W.2d 539 (Tex.Civ.App.--Dallas 1949, no writ); Attorney
General Opinion JM-513 (1986). The payment of consideration,
directly or indirectly by the participant, is an essential
element of the lottery offense under the Penal Code. See Penal
Code s 47.01(6); Brice v. State, 242 S.W.2d at 434-35; Attorney
General Opinion JM-513 (1986). The effect of the last clause of
subsection (a) of section 39 is to remove the element of
consideration from the specific criminal offense described in
subsections (a) of section 39, i.e., the conduct, promotion, or
administration of a "bingo" game as defined in subsection (a).
Since you have determined that the games about which you inquire
actually constitute "bingo" within the meaning of section 39,
they must be conducted in compliance with subsection (b)
regardless of whether a person who participates as a player
furnishes something of value for the opportunity to participate.
Subsection (b) requires that a valid license be obtained if the
game in question fails to fall within two limited exceptions.
Whether the conduct, promotion, or administration of these games
without a license actually constitutes a third degree felony also
depends upon proof of all of the other elements of a criminal
offense. Because some of these games are conducted over
television, you also ask whether federal law preempts the Bingo
Enabling Act.

Section 1304 of Title 18 of the United States Code provides:

Whoever broadcasts by means of any radio station for which a
license is required by any law of the United States, or whoever,
operating any such station, knowingly permits the broadcasting
of, any advertisement of or information concerning any lottery,
gift enterprise, or similar scheme, offering prizes dependent in
whole or in part upon lot or chance, or any list of the prizes
drawn or awarded by means of any such lottery, gift enterprise,
or scheme, whether said list contains any part or all of such
prizes, shall be fined not more than $1,000 or imprisoned not
more than one year, or both.

The San Antonio Court of Civil Appeals in State v. Socony
Mobile Oil Company, 386 S.W.2d 169 (Tex.Civ.App.--San Antonio
1964, writ ref'd n.r.e.), citing 18 U.S.C. s 1304, considered
whether an injunction could be granted prohibiting the broadcast
of a "TV-Bingo" game. The court concluded that even if the
bingo-format promotional scheme at issue there was a "lottery"
under Texas law, the state had no jurisdiction to enjoin the
broadcast because Congress had "preempted the field of regulating
the broadcasting of [it] over TV." 386 S.W.2d at 174.

The Socony Mobil holding would be in point if a promotional
game with a bingo format were a "lottery, gift enterprise, or
similar scheme" within the meaning of the federal statute whether
or not a person who participates as a player furnishes something
of value for the opportunity to participate. However, the
federal statute does not reach "give away" programs. Federal
Communications Commission v. American Broadcasting Company, 347
U.S. 284 (1954); Caples Co. v. United States, 243 F.2d 232
(D.C.Cir.1957).

The precise act prohibited by section 1304 of Title 18 is the
broadcasting of prohibited information or knowingly permitting
its broadcast (by one operating a station). It was held in
Federal Communications Commission v. American Broadcasting
Company, supra, that "give away programs" requiring no movement
of consideration from the participant were not lotteries, gift
enterprises, or similar schemes within the meaning of section
1304. In part, the Supreme Court based its conclusion on a long
standing administrative interpretation (by the Post Office
Department) of the same language found in section 1302 of Title
18, which prevents the mailing of lottery tickets and related
matters. Cf. Post Publishing Co. v. Murray, 230 F. 773 (1st
Cir.1916).

Thus, federal law does not punish the use of the mails or
broadcasting facilities to conduct, promote or administer a bingo
game if the person who participates as a player does not furnish
something of value for the opportunity to participate. But the
Texas Bingo Enabling Act does. Unless Congress has preempted the
entire field of criminal laws relating to lotteries or "give
away" promotions, the Texas law is enforceable. We do not
believe it was the intent of Congress in enacting sections 1302
and 1304 to occupy the field of criminal law with respect to
lotteries or "give away" schemes. Those statutes, in our
opinion, do not preempt the operation of a state criminal law
that reaches conduct nowhere addressed by a federal statute. Cf.
United States v. Fesler, 781 F.2d 384 (5th Cir.1986).

In Head v. New Mexico Board of Examiners in Optometry, 374 U.S.
424 (1963), the United States Supreme Court rejected a claim that
a state restriction on radio advertising of optometry prices was
invalid because, supposedly, the enactment of the Federal
Communications Act preempted the field. Mr. Justice Brennan,
concurring, said:

The New Mexico law is one designed principally to protect the
state's consumers against a local evil by local application to
forbid certain forms of advertising in all mass media. Such
legislation, whether concerned with the health and safety of
consumers, or with their protection against fraud and deception,
embodies a traditional state interest of the sort which our
decisions have consistently respected. (Citation omitted.) Nor
is such legislation required to yield simply because it may in
some degree restrict the activities of one who holds a federal
license.

374 U.S. at 445. We believe the Texas ban on unlicensed bingo
games presents an analogous situation. [FN1] Cf. Attorney
General Opinion MW-488 (1982).

The policy and scope of section 1304 was considered by the
Second Circuit in 1969, a few years after the Head case was
decided. In New York State Broadcasters Assn. v. United States,
414 F.2d 990 (2d Cir.1969), the court held that section 1304
applies to the television broadcast of prohibited information
about legal, state-sponsored lotteries as well as illegal ones.
In determining the scope of the congressional enactment, the
court stated:

In prohibiting the broadcasting of lottery information
Congress was not acting in a vacuum; for more than one hundred
years a prohibition on conducting a lottery by use of the mail
facilities had existed. See 18 U.S.C. ss 1302, 1303. Similarly,
prohibitions on importation and interstate shipment of lottery
material also existed when section 1304 was enacted. See 18
U.S.C. s 1301. It is true that Congress has not attempted to
prohibit the conduct of lotteries; with narrowly prescribed
exceptions the states have done that. But Congress has exercised
its power--the existence of which petitioners concede--to inhibit
lotteries and to aid the states by denying lottery promoters
access to facilities over which the federal government has
control.

It is in this light that the Commission's action must be
considered--not as an exercise of the power to regulate
broadcasting in the public interest necessitated by the nature
and technology of broadcasting, but as enforcement of the clear
congressional policy embodied in section 1304. (Emphasis added).

414 U.S. at 995.

The policy of the federal statute is to prohibit (in aid of the
states) the broadcast of certain types of information; it is not
one promoting the broadcast of whatever has not been specifically
prohibited by federal law. [FN2] The operation of state law to
prevent the broadcast of "give away" programs is not at odds with
any federal policy favoring such broadcasts. As the United
States Supreme Court noted in Exxon Corp. v. Governor of
Maryland, 437 U.S. 117 (1978), a "conflict" found only in the
possibility that a state statute would prevent an act that a
federal statute would otherwise "permit" (but not protect as a
policy matter) is not sufficient to warrant preemption. 437 U.S.
at 131. Cf. King v. Gemini Food Services, Inc., 438 F.Supp. 964
(E.D.Va.1976), aff'd per curiam, 562 F.2d 297 (4th Cir.1977)
(adopting district court's reasoning), cert. denied, 434 U.S.
1065 (1978); Vincent v. General Dynamics Corp., 427 F.Supp. 786
(N.D.Tex.1977). In our opinion the Bingo Enabling Act is not
preempted by federal law.

SUMMARY

The conduct, promotion, or administration of an unlicensed
game in which prizes are awarded on the basis of designated
numbers or symbols on a card conforming to numbers or symbols
selected at random is illegal unless expressly excepted by the
Texas Bingo Enabling Act, including, for example, games
conducted, promoted, or administered by local newspapers and
television stations even though persons who participate as
players furnish nothing of value for the opportunity to
participate.

Very truly yours,

Jim Mattox
Attorney General of Texas

Jack Hightower
First Assistant Attorney General

Mary Keller
Executive Assistant Attorney General

Rick Gilpin
Chairman
Opinion Committee

Prepared by
Bruce Youngblood
Assistant Attorney General

Footnotes

FN1 While sections 1304 and 1302 might preempt a state law which
attempted to penalize the broadcast of the same lottery
information condemned by the federal law, or which attempted to
penalize the mailing of such lottery information, they do not
preempt a state law that would prevent the production of the
material which, if it were produced, might then be broadcast or
mailed. Cf. Brooklyn Daily Eagle v. Voorhies, 181 F. 579
(E.D.N.Y.Cir.1910).

FN2 The scope of section 1304 was further restricted by the Third
Circuit in New Jersey State Lottery Commission v. United States,
491 F.2d 219 (3rd Cir.1974), another case involving a state-sponsored lottery. Certiorari was granted by the Supreme Court
in order to resolve the conflict created but the cause was
remanded to determine mootness in the light of section 1307 of
Title 18 (making section 1304 inapplicable to information about
state-conducted lotteries), subsequently enacted. United States
v. New Jersey State Lottery Commission, 420 U.S. 371 (1975).